Question #12 asks if the notice-and-takedown process sufficiently protects against fraudulent, abusive, or unfounded notices and what should be done to address this concern. Invalid takedown notices are most certainly a problem,[1] and the reason is that the system causes them to be a problem. As discussed in Section II.B the notice-and-takedown regime is inherently a censorship regime, and it can be a very successful censorship regime because takedown notice senders can simply point to content they want removed and use the threat of liability as the gun to the service provider’s head to force it to remove it, lest the service provider risk its safe harbor protection.

Thanks to courts under-enforcing subsection 512(f) they can do this without fear of judicial oversight.[2] But it isn’t just the lax subsection 512(f) standard that allows abusive notices to be sent without fear of accountability. Even though the DMCA includes put-back provisions at subsection 512(g) we see relatively few instances of it being used.[3] The DMCA is a complicated statute and the average non-lawyer may not know these provisions exist or be able to know how to use them. Furthermore, trying to use them puts users in the crosshairs of the party gunning for their content (and, potentially, them as people) by forcing them to give up their right to anonymous speech in order to keep that speech from being censored. All of these complications are significant deterrents to users being able to effectively defend their own content, content that would have already been censored (these measures would only allow the content to be restored, after the censorship damage has already been done).[4] Ultimately there are no real checks on abusive takedown notices apart from what the service provider is willing and able to risk reviewing and rejecting.[5] Given the enormity of this risk, however, it cannot remain the sole stopgap measure to keep this illegitimate censorship from happening.

Continuing on, Question #13 asks whether subsection 512(d), addressing “information location tools,” has been a useful mechanism to address infringement “that occurs as a result of a service provider’s referring or linking to infringing content.” Purely as a matter of logic the answer cannot possibly be yes: simply linking to content has absolutely no bearing on whether content is or is not infringing. The entire notion that there could be liability on a service provider for simply knowing where information resides stretches U.S. copyright law beyond recognition. That sort of knowledge, and the sharing of that knowledge, should never be illegal, particularly in light of the Progress Clause, upon which the copyright law is predicated and authorized, and particularly when the mere act of sharing that knowledge in no way itself directly implicates any exclusive right held by a copyright holder in that content.[6] Subsection 512(d) exists entirely as a means and mode of censorship, once again blackmailing service providers into the forced forgetting of information they once knew, and irrespective of whether the content they are being forced to forget is ultimately infringing or not. As discussed above in Section II.B above, there is no way for the service provider to definitively know.Continue reading »

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.